The right to participate in relation to projects or works on communal property
Posted: Tue Feb 18, 2025 5:09 am
The Court analyses consultations rights jointly with the right to communal property of Article 21, as it has in nearly all of its previous decisions. Unlike the Commission, which has construed the right to consultation as derived from several provisions of the ACHR – namely Articles 21 (property), 23 (participation), 26 (right to cultural identity), and sometimes 13 (access to information), the Court has been reticent to find violations other than that of Article 21 in this kind of case, at the most also recognising a violation of the right to cultural identity, but without mentioning Article 26 (Sarayaku v. Ecuador, paras. 230 and 232).
It was in the Kaliña and Locono case (para. 203) that the Court first considered that the right to consultation was also grounded in Article 23 (as the right “to take part in the conduct of public affairs”) in addition to Article 21. It appears that the Commission partially succeeded in its insistence for extending the grounding of this right, for in Lhaka Honhat again the Court decided that the rights to property and to participation (ACHR Articles 21 and 23.1) were violated (paras. 184-5).
Another point that is worth an analysis is what happens with the right to give or withhold consent. In the Inter-American System consultation rights could be defined in two levels. First, there is a “general obligation” or duty of the State to consult with indigenous peoples and guarantee their participation in decisions regarding any measure that affects their territory (Indigenous and Tribal People’s Rights over their Ancestral Lands, para. 273). Thus, the right to participation, with respect to decisions over indigenous peoples’ land and natural resources, is a right to “be involved in the processes of design, implementation, and evaluation of development projects carried out on their lands and ancestral territories (…). Consequently there is a State duty to consult and, in specific cases, obtain indigenous peoples’ consent in respect to plans or projects for investment, development or exploitation of natural resources in ancestral territories” (idem, paras. 289-90). So there is this second level, but this duty to obtain consent is only a limited one. The distinction between consultation and consent is a matter of the scale of the project (idem, paras. 329-333), and was established by the Court in the case of Saramaka v. Suriname (para. 134), but it has never been quite clear, and in no case to date has the Court declared a violation of the latter.
Was this a missed opportunity to do exactly that and to finally clarify 99 acres database when indigenous peoples are entitled to a right to consent? Two types of public works were analysed in Lhaka Honhat. One was some maintenance work on Provincial Route 54. The Court considered that it is important to distinguish between maintenance or betterment of existing work, on the one hand, and the making of new works or projects, on the other. The former does not require consultation, said the Court, for such a requirement would entail an unreasonable or excessive understanding of State’s obligations (Lhaka Honhat, para. 179). The other was an international bridge over the Pilcomayo River, which in that sector is a border with Paraguay. The Court considered that such a bridge is “an important undertaking for border transit and international trade. A civil work of this kind involves State policies and administration of territorial borders, as well as decisions with implications for the economy” (idem, para. 181). Infrastructure like that could be deemed at the same time large-scale in the Saramaka threshold, but strategic from the point of view of State sovereignty, posing a dilemma whether or not indigenous people could have the power to withhold consent for its construction. Since the Court observed that no consultations of any kind took place before the bridge’s construction, it ruled that Argentina violated the rights to property and participation. Again, we are left with no clarity on when indigenous peoples have a right to consent. Is it that such a bridge is not large-scale, or once again “the Court appeared to find it unnecessary to make specific reference to the requirement of consent [because the State] did not satisfy the preliminary obligation to consult; [and] thus, it was unnecessary to reach the issue of consent”? (see Brunner and Quintana).
It was in the Kaliña and Locono case (para. 203) that the Court first considered that the right to consultation was also grounded in Article 23 (as the right “to take part in the conduct of public affairs”) in addition to Article 21. It appears that the Commission partially succeeded in its insistence for extending the grounding of this right, for in Lhaka Honhat again the Court decided that the rights to property and to participation (ACHR Articles 21 and 23.1) were violated (paras. 184-5).
Another point that is worth an analysis is what happens with the right to give or withhold consent. In the Inter-American System consultation rights could be defined in two levels. First, there is a “general obligation” or duty of the State to consult with indigenous peoples and guarantee their participation in decisions regarding any measure that affects their territory (Indigenous and Tribal People’s Rights over their Ancestral Lands, para. 273). Thus, the right to participation, with respect to decisions over indigenous peoples’ land and natural resources, is a right to “be involved in the processes of design, implementation, and evaluation of development projects carried out on their lands and ancestral territories (…). Consequently there is a State duty to consult and, in specific cases, obtain indigenous peoples’ consent in respect to plans or projects for investment, development or exploitation of natural resources in ancestral territories” (idem, paras. 289-90). So there is this second level, but this duty to obtain consent is only a limited one. The distinction between consultation and consent is a matter of the scale of the project (idem, paras. 329-333), and was established by the Court in the case of Saramaka v. Suriname (para. 134), but it has never been quite clear, and in no case to date has the Court declared a violation of the latter.
Was this a missed opportunity to do exactly that and to finally clarify 99 acres database when indigenous peoples are entitled to a right to consent? Two types of public works were analysed in Lhaka Honhat. One was some maintenance work on Provincial Route 54. The Court considered that it is important to distinguish between maintenance or betterment of existing work, on the one hand, and the making of new works or projects, on the other. The former does not require consultation, said the Court, for such a requirement would entail an unreasonable or excessive understanding of State’s obligations (Lhaka Honhat, para. 179). The other was an international bridge over the Pilcomayo River, which in that sector is a border with Paraguay. The Court considered that such a bridge is “an important undertaking for border transit and international trade. A civil work of this kind involves State policies and administration of territorial borders, as well as decisions with implications for the economy” (idem, para. 181). Infrastructure like that could be deemed at the same time large-scale in the Saramaka threshold, but strategic from the point of view of State sovereignty, posing a dilemma whether or not indigenous people could have the power to withhold consent for its construction. Since the Court observed that no consultations of any kind took place before the bridge’s construction, it ruled that Argentina violated the rights to property and participation. Again, we are left with no clarity on when indigenous peoples have a right to consent. Is it that such a bridge is not large-scale, or once again “the Court appeared to find it unnecessary to make specific reference to the requirement of consent [because the State] did not satisfy the preliminary obligation to consult; [and] thus, it was unnecessary to reach the issue of consent”? (see Brunner and Quintana).